15 February 2013
The petitioner (the party Lehet Más a Politika) planned to organise an event in commemoration of 15th March to “celebrate the Freedom fight of 1848/49” at Heroes’ Square, Budapest. The request was examined by the Budapest Police Headquarters and the lack of its competence was declared as the concerned venue was used by the Municipality of Budapest based on a public area use agreement. The petitioner turned to the Regional Court regarding the order of Budapest Police Headquarter. The Regional Court of the Capital declared that it had no possibility to adjudicate the case on its merits, so it was transferred to the Budapest Police Headquarters. The petitioner submitted its constitutional complaint regarding the decision of the Regional Court of the Capital and regarding the judicial decision on the review of the order of Budapest Police Headquarters as well.
The Constitutional Court has declared that the decision of the Regional Court of the Capital violated the right to peaceful assembly (para. 1 Article VIII of Fundamental Law) as the Budapest Police Headquarters did not examine the order on its merits. The Court should have taken into consideration in this concrete case, that the legality and the justification of the public area use agreement were questionable as well. The Municipality of Budapest did not need public area use permission; therefore an abuse of law occurred when the concerned agreement was established. The fact, that all the possible public locations in Budapest where the Freedom fight of 1848 could be properly commemorated with a huge number of participants had been reserved in advance by the Municipality of Budapest refers to an abuse as well. Furthermore, if the Court had examined on its merits and the statement of the Municipality of Budapest regarding the resignation of the use of Heroes’ Square on the 15th of March had been taken into consideration, the petitioner would have organised the event at Heroes’ Square on the 15th of March 2012, provided that there was no any other legal reason to prevent it. Thus, the judicial decision was found contrary to the Fundamental Law and it was annulled by the Constitutional Court.
The Constitutional Court has determined constitutional requirements in order that the aspects in the decision give a direction to the Courts in the future disputes on the right of assembly. Based on these requirements, the decision of the police on the notification of an event and in which the lack of its competence is declared, is that kind of decision that the Court shall review on its merits. The Court shall review the legality and the establishment of the decision on its merits.
Dr. István Balsai, Dr. Mihály Bihari and Dr. Béla Pokol judges attached concurring opinion and, Dr. András Bragyova and Dr. Mihály Bihari judges attached dissenting opinion to the decision.
In accordance with the Fundamental Law and the Act on the Constitutional Court, from 1 January 2012 the Constitutional Court has competence to review judicial decisions regarding the conformity with the Fundamental Law. Acting in its new competence, this is the first occasion that the Constitutional Court declared that the examined decision is contrary to the Fundamental Law and annulled the concerned decision.